Medical Assistance in Dying Cannot be Canada’s Alternative to Social Welfare
Canada’s ban on medical assistance in dying (MAiD)[1] for individuals who suffer solely from mental illness is set to expire on March 17, 2023.[2] In 2015, the Supreme Court of Canada in Carter v. Canada struck down an absolute prohibition on medically assisted death.[3] The country has since been grappling with the legal, social, and ethical implications of permitting certain persons to end their lives through medically assisted death. The upcoming MAiD expansion underscores Canada’s urgent need to address the social and economic aspects of mental health.
In the wake of Carter, Canada’s Parliament enacted Bill C-14 to authorize MAiD[4] which, among other criteria, permitted medically assisted death only in cases where an individual’s natural death due to a medical condition was “reasonably foreseeable.”[5] MAiD law evolved again after the Superior Court of Québec in Truchon v. Canada declared that the reasonable foreseeability requirement was unconstitutional,[6] prompting Parliament to conform the law to Truchon through Bill C-7.[7] Parliament excluded those whose sole underlying medical condition is mental illness from MAiD eligibility, but it also adopted a sunset clause which will automatically repeal the exclusion in March.[8]
The Canadian government is uncertain that proper arrangements will be in place when the sunset clause is triggered, and in December 2022 announced its intention to pursue a legislative extension on the rapidly approaching deadline.[9] Others have raised the alarm on the consequences of interactions between MAiD solely for mental illness and poverty, marginalized identity, and structural flaws in the provision of social services. Opponents have pointed out that inadequate access to mental health care could result in Canadians resorting to MAiD as a substitute for mental health treatment,[10] and that poverty and social injustice could contribute to an individual’s choice in seeking MAiD.[11] A central principle underlying the decision in Carter was personal autonomy,[12] and failures in social infrastructure could rob individuals suffering from mental illnesses of autonomy in this profoundly personal choice.
Indeed, Canada’s current MAiD laws have already revealed deficiencies in its social support structures. In one instance, a paraplegic military veteran and Paralympian was sent a letter offering MAiD from Veterans Affairs Canada after she sought the installation of a wheelchair ramp in her home.[13] Meager disability benefits, inadequate housing, and the promotion of MAiD by medical providers have factored into other Canadians’ decisions on whether to seek and complete MAiD.[14] Expanding MAiD eligibility to those whose sole medical condition is mental illness is likely to further expose cracks in the foundation.
Canada’s government is aware that mental health sits within a broad social context. A panel of experts recently conveyed to Parliament’s Special Joint Committee on Medical Assistance in Dying that unmet social and medical needs have coercive potential when it comes to seeking MAiD. [15] This dovetails with the Health Canada’s recommendation that those who apply for MAiD can access “the fullest possible range of social supports,” including housing and income support.[16] MAiD can only ethically exist where there are robust and accessible social structures in place. As Canada expands access to MAiD, it is imperative that it commits the necessary resources to ensure that the decision to end one’s life is fully autonomous.
Darcy Diaz is a staff member of Fordham International Law Journal Volume XLVI.
[1] MAiD is known elsewhere as medically assisted death, physician-assisted death, and physician-assisted suicide.
[2] See An Act to amend the Criminal Code (medical assistance in dying), S.C. 2021, c 2, s 1(2), 6 (Can.).
[3] See Carter v. Canada (Attorney General), [2015] S.C.C. 5, para. 4 (Can.) (holding that criminal sanctions on medically assisted death for competent, consenting adults who suffer from “grievous and irredeemable medical conditions” were in violation of the Canadian Charter of Rights and Freedoms).
[4] Julia Nicol & Marlisa Tiedemann, Parliamentary Info. and Rsch. Serv., Library of Parliament, Legislative Summary of Bill C-14: An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying) 1 (2018), https://lop.parl.ca/staticfiles/PublicWebsite/Home/ResearchPublications/LegislativeSummaries/PDF/42-1/c14-e.pdf.
[5] See An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), S.C. 2016, c 3, s3 (Can.) (amending Criminal Code, R.S.C. 1985 c. C-46, s. 241.2(2)(d) (Can.)).
[6] See Truchon c. Procureur général du Canada, 2019 QCCS 3792, paras. 734, 736 (Can. Que. C.S.).
[7] Julia Nicol & Marlisa Tiedemann, Parliamentary Info. and Rsch. Serv., Library of Parliament, Legislative Summary of Bill C-7: An Act to Amend the Criminal Code 1-2 (Medical Assistance in Dying) (2021), https://lop.parl.ca/staticfiles/PublicWebsite/Home/ResearchPublications/LegislativeSummaries/PDF/43-2/43-2-C7-E.pdf.
[8] See An Act to amend the Criminal Code (medical assistance in dying), S.C. 2021, c 2, s 1(2), 6 (Can.).
[9] Darren Major, Government seeking delay to MAID expansion that would cover mental illness, CBC News (Dec. 16, 2022), https://www.cbc.ca/news/politics/maid-deadline-extension-mental-illness-1.6687429.
[10] See Ramona Coelho et al., Missing the mark on a profound social change with MAiD for mental illness, Policy Options (Mar. 24, 2022) https://policyoptions.irpp.org/magazines/missing-the-mark-on-a-profound-social-change-with-maid-for-mental-illness/.
[11] See Trudo Lemmens, Turning Human Rights Upside Down: Parliament's Fast Track Review of Canada's MAID Regime and the Push for Further Expansion, Univ. of Toronto Faculty of Law: Faculty Blog (June 16, 2022), https://www.law.utoronto.ca/blog/faculty/turning-human-rights-upside-down-reflections-canadas-joint-parliamentary-committee.
[12] See Carter v. Canada (Attorney General), [2015] S.C.C. 5, paras. 64-68 (Can.).
[13] See Murray Brewster, Former paralympian tells MPs veterans department offered her assisted death, CBC News (Dec. 1, 2022, 9:12 PM), https://www.cbc.ca/news/politics/christine-gauthier-assisted-death-macaulay-1.6671721.
[14] Brennan Leffler & Marianne Dimain, How poverty, not pain, is driving Canadians with disabilities to consider medically-assisted death, Global News (Oct. 8, 2022), https://globalnews.ca/news/9176485/poverty-canadians-disabilities-medically-assisted-death/.
[15] See Hon. Marc Garneau and Hon. Yonah Martin, Rep. of Special Joint Committee on Medical Assistance in Dying, Medical Assistance in Dying and Mental Disorder as the Sole Underlying Condition: An Interim Report (2022), at 12-15 (1st Sess. 2022). Report available at: https://parl.ca/DocumentViewer/en/44-1/AMAD/report-1/.
[16] See Health Canada, Final Report of the Expert Panel on MAiD and Mental Illness, at 61 (2022). Report available at:https://www.canada.ca/en/health-canada/corporate/about-health-canada/public-engagement/external-advisory-bodies/expert-panel-maid-mental-illness/final-report-expert-panel-maid-mental-illness.html.
This is a student blog post and in no way represents the views of the Fordham International Law Journal.